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2008 DIGILAW 760 (GAU)

Amal Biswas v. State of Tripura

2008-10-03

H.BARUAH

body2008
JUDGMENT H. Baruah, J. 1. Appellant Amal Biswas stood charged under Section 307/34, 353/34 and 342/34 before the learned Additional Sessions Judge, West Tripura for attempting to commit murder of Shyamal Dutta, a night guard, obstructing him from discharging his duties as night guard and for wrongful confinement of said Shyamal Dutta in furtherance of common intention on the intervening night of 5.2.2001 and 6.2.2001 at about 8.00/8.20 P.M. The learned Addl. Sessions Judge, West Tripura, after due trial, recorded punishment of the appellant under Section 307 IPC and sentenced him to undergo rigorous imprisonment for 10 years and fine of Rs. 7000 in default to suffer simple imprisonment for 2 years. Although the learned Addl. Sessions Judge, recorded a finding of guilt of the appellant under the charge in Sections 353 and 342 IPC, refused to award punishment under both the charges aforesaid in view of sentencing the appellant adequately under Section 307 IPC. 2. The appellant, feeling aggrieved and dissatisfied by the impugned judgment and order of conviction, has preferred this appeal challenging its legality and its correctness. 3. The facts involved in the appeal are that the appellant and the injured Shyamal Kr. Dutta (PW2) are both Group-D employee of the office of the Chief Judicial Magistrate, West Tripura, Agartala (PW10) and during the relevant period both were discharging the duties of night guard in the office of the Chief Judicial Magistrate. On 5.2.2001 victim Shyamal Dutta was on guard duty of the court as well as the office of the Chief Judicial Magistrate from 4 P.M. to 5 P.M. and accused along with PW1 Tapan Kr. Dey was supposed to take over the charge on guard duty from the victim Shyamal Dutta and to perform the duty during the night hours from 9 P.M. to 6 am, the following day. Shyamal Dutta while on duty was severely assaulted by Amal Biswas, the appellant and two other associates (unknown) by means of blunt and sharp weapon for his refusal to handover the key of the Nazarat section. As a result of such assault Shyamal Dutta sustained injuries on his head and throat for which he had to under go treatment at G.B. Hospital, Agartala for considerable long time. 4. Sri Tapan Kr. As a result of such assault Shyamal Dutta sustained injuries on his head and throat for which he had to under go treatment at G.B. Hospital, Agartala for considerable long time. 4. Sri Tapan Kr. Dey (PW1), another night guard narrating the factum of assault on Shyamal Dutta lodged an FIR (Exhibit-1) with West Agartala P.S on 5.2.2001, which had been registered and investigated into. After due investigation a charge sheet was laid against the appellant under Section 307, 353, 342 read with Section 34 IPC. 5. Learned trial court framed charges as stated herein before against the appellant and received evidence, both oral and documentary. During trial 17 witnesses were examined while 28 numbers of documents were exhibited and proved by the prosecution to bring home the charges against the appellant. Learned trial court having scrutinized the evidence, both oral and documentary, recorded a finding of guilt of the appellant under the charges under Section 307, 353 and 342 IPC and awarded sentence of 10 years rigorous imprisonment and fine of Rs. 7000 in default simple imprisonment for 2 (two) years. It is already stated herein before that the learned trial court did not record any punishment under the charge 353 and 342 since adequate punishment according to him was awarded under Section 307 IPC. 6. From the careful scrutiny of the evidence on record, it is noticed that the prosecution witnesses Nos. 1, 2, 6, 7, 8, 12, 13 and 14 as well as the appellant were all working in the office of the Chief Judicial Magistrate, West Tripura, in different capacity while PW10 was the Chief Judicial Magistrate at the relevant point of time. 7. The issue before us is whether the learned trial court committed error and illegality in recording punishment against the appellant under Section 307 IPC in view of the facts and circumstances of the s and evidence on record both oral and documentary. 8. Sri B. Das, Learned Senior Counsel appearing for and on behalf of the appellant, at the very threshold of his argument submitted that there is no evidence on record to show complicity of the appellant in respect of the charge framed against him. The learned trial court without marshalling the evidence on record in its proper perspective erroneously recorded a finding of guilt of the appellant. The learned trial court without marshalling the evidence on record in its proper perspective erroneously recorded a finding of guilt of the appellant. It was further argued by him that there was no independent eye-witness as to the commission of the of fence by the appellant along with two other unknown faces and in that view of the tine matter it was not proper on the part of the trial court to record a finding of guilt under the sections of law and sentencing him under Section 307 IPC. 9. Now, in view of the claim of the Learned Senior Counsel Mr. B. Das, let us scan the evidence of material witnesses of the case. From scrutiny of the evidence on record, evidence of PW1, PW2, PW3, PW6, PW7, PW8, PW9, PW10, PW12, PW14, PW15 and PW16 are found much vital in the context of involvement of the appellant in the commission of the crime. 10. PW1 Mr. Tapan Kr. Dey is a group-D employee and was discharging night duty at the relevant point of time and did find appellant Amal Biswas on his arrival at the office who informed him about the missing of the victim Shyamal Kr. Dutta, PW2 another night guard who was on duty. A search was made and ultimately he was found lying inside the Lavoratory-cum-Urinal room with severe bleeding injuries in his neck, head etc. Police personnel also appeared at that moment and the injured was removed to G.B. Hospital, Agartala. He also stated in his evidence that appellant Amal Biswas refused to accompany the injured to hospital even after request made by the police. He, however, accompanied Shyamal Dutta to G.B. Hospital. In the hospital when asked, Shyamal Dutta, the injured revealed that while he (Shyamal Dutta) was in guard room at about 8 P.M., at that time two young man of tribal appearance entered and wanted him to hand over the key of the Nazarat Section and at that moment appellant Amal Biswas also entered into the room. All the three then caught hold of him and one of them hit on his backside with a heavy object like brick. One tightly caught at his neck and all of them dragged him toward the Lavoratory-cum-Urinal and thereat, he was assaulted with a dagger on his throat. All the three then caught hold of him and one of them hit on his backside with a heavy object like brick. One tightly caught at his neck and all of them dragged him toward the Lavoratory-cum-Urinal and thereat, he was assaulted with a dagger on his throat. This witness also specially stated that the injured revealed to him that the appellant and his companion numbering two assaulted him when he refused to hand over the key of the Nazarat Section. 11. PW2, Shyamal Dutta is the injured in this case, his categorical evidence is that while he was on duty he received a telephone call from the Registrar of the Gauhati High Court and accordingly arrived thereat at about 6.10/6.15 P.M. The Registrar of the High Court, after enquiring about the person engaged in duty, delivered a letter through private secretary to hand over the same to the CJM and accordingly he proceeded to the residence of the learned CJM, Mr. Subhas Ch. Saha and handed over the letter to Mrs. Saha since learned CJM was not present at his residence. He returned to duty at about 7 P.M. At about 8.15 P.M. two youths of tribal appearance entered into his room and demanded to hand over the key of the Nazarat. He expressed his inability to hand over the key of the Nazarat as the keys were lying with Nazir Babu. They threatened him. The manner in which those two youths approached him, he to apprehended danger and, so he rushed inside the office room to have a telephone call but both of them jumped on him and snatched the telephone and hit him on his head with a roller used as scale in the office. At that moment his colleague, appellant Amal Biswas entered into the said room and ordered those two unknown faces to drag him out side the room. He tried to raise hue and cry but he was unable to do so since his neck was tightly caught by one of them. Thereafter, all the three over powered him and dragged him into the Urinal-cum-Lavoratory Situated back side of the office of the CJM wherein they all heavily hit his head against the wall and pucca floor. Appellant then started cutting on his throat with repeated rubbing with a dagger as a result of which there was perfused bleeding. Thereafter, all the three over powered him and dragged him into the Urinal-cum-Lavoratory Situated back side of the office of the CJM wherein they all heavily hit his head against the wall and pucca floor. Appellant then started cutting on his throat with repeated rubbing with a dagger as a result of which there was perfused bleeding. Amal Biswas, the appellant and the two others left the place and at the time leaving Amal requested his two companions to meet him on the following morning. Gradually he was loosing his senses and in the meantime somebody had removed him therefrom. In the hospital, after treatment, on query by Tapan (PW1) he narrated the incident. He also stated that he had a quarrel with Amal Biswas, the appellant for performance of duty on earlier occasions for his (appellant) negligence in duties and once he tried to kill him out of grudge. 12. Sri Subal Roy, another night guard of the Deed Writer's office was examined as PW4 by the prosecution. On 5.2.2001 at about 8.00 to 8.30 P.M. he was on guard duty in Deed-Writer's office. At that time he heard that Shyamal Dutta, PW2, a night guard of the CJM office went missing. Hearing the news he immediately rushed to the office of the CJM and found things lying hither and thither in the office room. Police personnel and several others were searching for Shyamal Dutta and after search Shyamal Dutta was found lying in Lavoratory-cum-Urinal with severe bleeding injuries. Shyamal Dutta was thereafter, taken to G.B. Hospital. At that time he was almost unconscious. Subsequently Daroga Babu seized some bloodstains from the spot and prepared a sketch map in his presence. 13. PW6 and PW7 are both seizure witnesses. Both have stated categorically in their evidence that police during search in the vacant land situated nearby latrine-cum-urinal found a dagger stained with blood covered by grass, etc., which had been seized in their presence and they put their signature as seizure witnesses. Evidence of PW8 and PW9 go to show that injured informed them that it was appellant and two others who caused injuries on his person. 14. From the evidence of the above witnesses it has become transparent that on the relevant night PW2 Shyamal Dutta, the injured was on night duty in the office of the Chief Judicial Magistrate. Evidence of PW8 and PW9 go to show that injured informed them that it was appellant and two others who caused injuries on his person. 14. From the evidence of the above witnesses it has become transparent that on the relevant night PW2 Shyamal Dutta, the injured was on night duty in the office of the Chief Judicial Magistrate. At about 8.15 P.M., 2 (two) youths entered into his room and demanded key of the Nazarat section. Keys of the Nazarat section were stated to be in the possession of the Nazir babu. Both of them threatened him with dire consequences. In the meantime Amal Biswas, the appellant who was also one of the night guards appeared in the room and directed those two unknown faces to drag him out side the room and thereafter they all, despite resistance managed to drag Shymal Dutta (PW2) unto the Lavoratory-cum-Urinal situated backside of the CJM office where they assaulted him and dashed his head against the wall and pucca floor. Appellant Amal Dutta then with a dagger caused injuries on his throat by repeated rubbing the dagger. Injured was unable to raise hue and cry. The three left him (Shyamal Dutta) thereat thinking that he was dying. From their evidence it has also come onto the surface that the appellant at the time of leaving the place requested his two companion to meet him on the next morning. By cross-examination, defence was unable to rebut the material evidence of the three witnesses namely PW1, PW2 and PW3. PW6 and PW7 were the seizure witnesses who lend support to the evidence of P Ws1, PW2 and PW3. It is in the evidence of PW2 that Amal Biswas used a dagger while cutting his throat. Evidence of PW6 and PW7 also go to show that the police during search found a dagger stained with blood from a vacant place situated near the Urinal of the office of the CJM, which was covered with grasses. Therefore, the recovery of the said dagger coupled with the evidence of PW2 in particular, makes it palpably clear that the said dagger was the weapon offence used by Amal Biswas while cutting the throat of the PW2, Shyamal Dutta. 15. Therefore, the recovery of the said dagger coupled with the evidence of PW2 in particular, makes it palpably clear that the said dagger was the weapon offence used by Amal Biswas while cutting the throat of the PW2, Shyamal Dutta. 15. PW1, PW3, PW8 and PW9, all without any ambiguity, stated that at the hospital PW2, Shyamal Dutta, the injured divulged them that it was appellant Amal Dutta and two others who caused injuries to his person while he refused to hand over the keys of the Nazarat section. From a combined reading of the evidence of PW1, PW2, PW3, PW6, PW7, PW8 and PW9 no doubt appears to have crept in that it was not the appellant and the two others who did not resort to assault on PW2 (Shyamal Dutta) on the relevant night and time. 16. All these above witnesses very categorically stated that Shyamal Dutta (PW2) received injuries on his person for which he had to undergo treatment at G.B Hospital, Agartala for a considerable time. PW15 is Dr. Turan Guha. His evidence goes to show that PW2, Shyamal Kr. Dutta received the following two injuries. (1) Stitched wound, anterior neck (switchered at emergency), the injury was measuring, 5 c.m. long, transverse incision above the thyroid cartilage. (2) Stitched would in the occipital region (Switchered at emergency) transverse wound 3 c.m. long. His evidence further goes to show that after admission of the patient in the hospital he was shifted immediately to the O.T. for an emergency tracheotomy, which was performed under local anasthetia. Evidence of the doctor is accordingly found corroborative with the evidence of PW2 and others in respect of sustention of injury by PW2 on his throat. 17. Throat is a vital part of the human physiology and any injury caused to throat may result death of the person concerned. All the witnesses whose evidence are specifically examined/scrutinized by this Court in this appeal speak of sustention of injury by PW2 on his throat. The doctor, PW15 in his evidence very specifically stated that patient was induced through tracheotomy tube. Thyroid cartilage were turn apart, infra hyoid muscles were severed, Thyroid hyoid membrane has injured. It was opined that the injuries received by the patient were sufficient to cause death in ordinary course of nature since larynx and trachea were exposed. The doctor, PW15 in his evidence very specifically stated that patient was induced through tracheotomy tube. Thyroid cartilage were turn apart, infra hyoid muscles were severed, Thyroid hyoid membrane has injured. It was opined that the injuries received by the patient were sufficient to cause death in ordinary course of nature since larynx and trachea were exposed. The injuries were absolutely serious in nature and it was caused by sharp instrument. Therefore, this Court finds that findings of the learned trial court in respect of the charge under Section 307 IPC cannot be interfered with. The learned trial court though recorded a finding of guilt of the appellant under the charges 353 and 342 of the IPC but no punishment was awarded under both the charges, holding that the appellant was severely punished under Section 307 IPC. 18. When a court finds of fender/offenders guilty of various charges, the court ordinarily should award punishment under each of the charges. But here, in this case we have found that the trial court only awarded punishment under one charge and refused to award punishment in other two charges which were also held to have been proved by the prosecution. The manner in which the punishment will run is a discretion of the court concerned. But by not awarding any punishment in the remaining two charges, the trial court committed error and illegality. 19. Now, let us see what was the motive behind the incident. PW2 in his evidence stated that there was a tussle in between him and the appellant for performing night duties, for which, once he (appellant) tried to kill him. Evidence of PW10, the then Chief Judicial Magistrate and PW12 also go to show that there was a complaint against the appellant for his negligence in performing duties. A complaint was made by PW2. Perhaps the complaint which had been submitted by PW2 against the appellant perhaps triggered to hatch a conspiracy to kill PW2 (Shyamal Dutta) with assistance of two other youths who were unknown to PW2. But somehow his life was saved. 20. In view of overwhelming evidence appearing in the face of the record, this Court finds it extremely heard to accept the submissions of Mr. B. Das, Learned Senior Counsel that there is no evidence at all on record to show complicity of the appellant in the commission of the crime. But somehow his life was saved. 20. In view of overwhelming evidence appearing in the face of the record, this Court finds it extremely heard to accept the submissions of Mr. B. Das, Learned Senior Counsel that there is no evidence at all on record to show complicity of the appellant in the commission of the crime. This Court does not see any force in the argument advanced by Mr. B. Das. 21. The learned Addl. P.P. Mr. Ghosh appearing for the State respondent submitted that the learned trial court after meticulous scrutiny of the facts and circumstances and evidence on record came to a finding of guilt of the appellant under every charge. The judgment and order of conviction rendered by the learned Additional Sessions Judge, West Tripura, therefore, does not warrant any interference from this Court, he argued. The argument put forward by Mr. B. Das, Learned Senior Counsel, according to Mr. Ghosh, has no legs to stand. 22. After a meticulous scanning of the facts and evidence on record as well as the judgment rendered by the Addl. Sessions Judge, this Court does not find it a fit case where a reverse finding or a modification of the sentence can be made. 23. This appeal, thus, devoid of merit and accordingly dismissed. Send down the records. Superintendent of Jail accordingly be informed. Appeal dismissed.